Berne was revised many times over the next few decades, but it largely stuck to its original mission of dealing with copyright in books and artwork. In 1961, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations added a major new set of copyright guidelines to address the needs of TV and record producers and actors—a case of the law changing with the times.

When the Internet crashed in upon the analog world of copyright in a terrifically disruptive wave, rightsholders wanted Berne and Rome updated for this strange new digital era. It was an era when merely saying "Don't do it!" and relying on the great expense of reproduction equipment was good enough; any commercial pirates were of necessity large operations that were easier to find and prosecute.

But this new digital world put copying technology into the hands of the public, and the public went to town. As Columbia law professor Jane Ginsburg describes the moment in a 2005 paper (PDF):

"When digital media changed the technological balance, they also altered legal relationships, for now economically significant infringing acts were no longer the sole province of entities higher up the distribution chain. To redress the shift, it might be necessary to reinforce the legal prohibition with a layer of technological protection, disabling end users from availing themselves of some of the copying technology’s potential for reproducing and redistributing copyrighted works."

Users could find crafty ways around these digital locks, and the logic of the situation led, inexorably, toward the idea of "anti-circumvention." Now it would be illegal to perform certain computational operations on certain collections of bits—an odd philosophical concept in one way, but something that had precedent in US law. 1992's Audio Home Recording Act brought the wonders of SDMI to digital tape, for instance, and the war against satellite descramblers has a long and fascinating history, along with plenty of colorful characters.

But who would pass such anti-circumvention rules into law? Going country by country was a huge amount of work; much better for rightsholders to write the idea into an international agreement, get the world to sign on, then sit back as countries around the globe began enforcing anti-circumvention rules and DRM proved (ahem) its worth.

Thus, the WIPO "Internet treaties" of 1996. The organization that administered the Berne Convention, a group with the unfortunate acronym BIRPI, eventually joined the United Nations and became WIPO—the World Intellectual Property Organization.

In 1996, WIPO oversaw the approval of two treaties that continued the process of adapting copyright law to the times—in this case, to the Internet. The Berne Convention was updated and supplemented by the WIPO Copyright Treaty, while the Rome Convention was updated and supplemented by the WIPO Performances and Phonograms Treaty.

Both treaties include language on anticircumvention, under the reasoning that this was the necessary protection rightsholders needed in order to offer their work on the Internet at all (the later example of the music industry would put the lie to this argument, but it sounded good at the time). There was just one hitch: the countries at WIPO weren't willing to go along with the super-strict rules that some rightsholders wanted.

Pam Samuelson, a prominent law professor at the University of California-Berkeley, describes the moment this way:

"The Clinton Administration was proposing that a virtually identical anti-circumvention rule be included in a draft treaty on digital copyright issues scheduled for consideration at a diplomatic conference in December 1996 at the headquarters of the World Intellectual Property Organization (WIPO) in Geneva. Even though the draft treaty included a White Paper-like anticircumvention rule, shortly before the diplomatic conference commenced, the Clinton Administration decided not to support the draft treaty proposal because there was such strong domestic opposition to the White Paper-like provision.

"US negotiators to the WIPO diplomatic conference were under instructions to support a more neutral anticircumvention rule which called upon nations to provide 'adequate protection' and 'effective remedies' to deal with circumvention of technical protection systems used by copyright owners to protect their works. The WIPO Copyright Treaty (WCT) adopted this approach to anti-circumvention regulation."

The final treaty text said, "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."

Clearly, much would depend on how each country implemented this, as it allowed for circumvention in any way "permitted by law." This was hardly the ironclad anti-circumvention rule that rightsholders wanted.

The US implementation of these treaties was the Digital Millennium Copyright Act (DMCA) of 1998, the law that brought anticircumvention from WIPO's Geneva HQ into your living room. Bypassing DRM was forbidden to most Americans (as were the devices that could help), but again, rightsholders had to accept a host of limitations: a bunch of targeted exceptions for security researchers and others, and a triennial DMCA review by the Library of Congress that could approve more exceptions. Again, a blanket ban was out of reach.

In addition, the DMCA got huge pushback from the growing ISP industry. We can't possibly be responsible for what users do with our pipes! they argued—and managed to stall the bill in Congress. The Clinton administration had originally argued for ISP liability for user infringement, but it eventually had to accept the major new "safe harbor" principle: if you don't know anything about the infringement and don't encourage it, you're not liable.

Samuelson again: "Once the [ISP] compromise broke the legislative logjam, it was clear that the DMCA was going to be enacted. Although the anti-circumvention regulations continued to breed controversy, telcos and OSPs had spent virtually all of their political capital on the safe harbor provisions."

And those "safe harbors" did include the provision that ISPs create "a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers." We'll return to this point in a moment.

The DMCA passed in 1998, but to understand why it wasn't enough for some rightsholders, look at the 12 years since. While the EU passed a wide-ranging anti-circumvention law, some nations did not; Canada has yet to even ratify the 1996 treaties.

And the WIPO treaties remain ambiguous. As Canadian law prof Michael Geist argued in a February 2010 speech, Canada could well ratify the treaties—but still allow circumvention where the intended use was legal. "The WIPO treaties offer considerable flexibility in how to implement anticircumvention rules," he said, and supported the idea of a "cleaner, simpler, more balanced approach that linked circumvention to copyright infringement. With that approach, we would comply with WIPO (the Liberal bill passed muster with the Department of Justice), no need for specific references to technology, no long list of exceptions, and we would still target clear cases of infringement."

But that's an exception that Hollywood et al. simply won't countenance; it's big and messy. So the challenge remains for rightsholders: how to get countries like Canada to go along with the WIPO treaties and to do so in a way that prevents expansive interpretations?

Well, you could pass another international treaty with tougher terms. But WIPO—why, there's too many nations who won't go along with further copyright restrictions, the whole process is (relatively) open and involves NGOs, and it's slow. These are all drawbacks. Instead, what about a smaller and separate process, with no unnecessary oversight, little transparency, and a "coalition of the willing"? Oh, and if you can set it up in such a way to avoid legislatures in countries like the US, that would be a big bonus.

Welcome to ACTA.

The above history helps to explain why, when the ACTA Internet chapter leaked, it didn't just repeat the WIPO formulation on anticircumvention. Instead, it would ban "the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram." It also banned circumvention devices, even those with a "limited commercially significant purpose."

Countries could set limits to the ban, but only insofar as they do not "impair the adequacy of legal protection of those measures." This is ambiguous, but allowing circumvention in cases where the final use is fair might well be outlawed. In other words: forget it, Michael Geist!

The process is rotten and illegitimate, yet there is a risk it will succeed.

"ACTA is therefore viewed as a mechanism to win the policy battle lost in Geneva in 1996," wrote Michael Geist recently. " It would force countries like Canada to adopt the US approach, even though the treaty explicitly envisioned other possibilities." (Fortunately, one of the options in the new treaty waters this down quite a bit and gives countries more flexibility; we'll have to see if it is actually adopted.)

ACTA also could be used to push the DMCA's balance between safe harbors and "terminations." Though this hasn't yet led to massive Internet disconnections in the US, it certainly wouldn't hurt rightsholders to have such language stuck into legal codes around the world; it would definitely help convince judges that such terminations were legal when these cases arise, and it could be used to pressure ISPs who aren't doing what the big copyright industries want. (Again, the current draft has toned this down a bit, though countries are still explicitly allowed to disconnect users and block websites.)

And it could be done in a more secretive environment, a benefit given that the public always seemed to balk at super-strict anticircumvention rules. I asked Pam Samuelson about the results of this process. She characterized it as the latest battle in a long-running war waged by those with a "high protectionist agenda."

"Ever since that [WIPO] treaty was concluded," she said, "US officials and US copyright industry groups have been trying to persuade legislatures and trade officials around the world that the treaty requires a high level of protection versus circumvention and no limiting rules—although several limits are built into US law. Not having been able to succeed through the democratic process, the high protectionist forces are using backroom negotiations at ACTA to accomplish the restrictions the entertainment industry says it needs.

"The process is rotten and illegitimate, yet there is a risk it will succeed unless the IT industry and user base find a way to bring its unbalanced agenda to light." Given the changes already made to ACTA in the last several months, that pressure appears to have had some effect.